Colbert v. Director, TDCJ-CID

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER BRIAN COLBERT, §
TDCJ No. 2245499, §
§
Petitioner, §
§ No. 3:25-cv-649-K-BN
V. §
§
DIRECTOR, TDCJ-CID, §
§
Respondent. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Christopher Brian Colbert, a Texas prisoner, submitted a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 in the Southern District of Texas
relating to his Dallas County convictions. See Dkt. No. 1. The Southern District of
Texas transferred the case to this district. See Dkt. No. 5. And United States District
Judge Ed Kinkeade referred Colbert’s petition to the undersigned United States
magistrate judge for pretrial management under 28 U.S.C. § 636(b) and a standing
order of reference.
The Court entered a notice of deficiency and order that Colbert did not file his
pleadings on the appropriate form and attached the form required in this Court. See
Dkt. No. 9. And, on April 22, 2025, Colbert filed an amended petition on the form
provided challenging his Dallas County convictions. See Dkt. No. 13.
Two days later, Colbert filed a second petition for writ of habeas corpus in this
case challenging disciplinary proceedings at TDCJ’s Wainwright Unit where he is
currently incarcerated. See Dkt. No. 15. That petition was severed from this case. See
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Dkt. No. 16. And the new case was transferred to the Lufkin Division of the Eastern
District of Texas because, as the district where he is presently confined, that court
has jurisdiction over habeas petitions challenging disciplinary proceedings. See
Colbert v. Dir., TDCJ-CID, No. 3:25-cv-1067-K-BN, Dkt. No. 5 (N.D. Tex. May 2,
2025).
Colbert then attempted to amend his petition again without seeking leave of
court. See Dkt. No. 23. And the undersigned entered an order that Colbert’s June 25,
2025 amended petition would be disregarded for failure to seek leave. See Dkt. No.
25. So the operative petition in this action remains the amended petition filed on
April 22, 2025 [Dkt. No. 13].
Because that petition did not appear to be timely, the undersigned issued a
questionnaire to Colbert to provide him with an opportunity to explain why his
federal habeas action was not time-barred and what (if anything) prevented him from
filing sooner. See Dkt. No. 17. And Colbert filed his responses. See Dkt. No. 28.
And the undersigned enters these findings of fact, conclusions of law, and
recommendation that, under the circumstances here and for the reasons set out
below, the Court should dismiss this federal habeas challenge with prejudice as time
barred under Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4).
Legal Standards
Habeas Rule 4 allows a district court to summarily dismiss a habeas
application “if it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” see also
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Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (“This rule differentiates habeas
cases from other civil cases with respect to sua sponte consideration of affirmative
defenses. The district court has the power under [Habeas] Rule 4 to examine and
dismiss frivolous habeas petitions prior to any answer or other pleading by the state.
This power is rooted in “the duty of the court to screen out frivolous applications and
eliminate the burden that would be placed on the respondent by ordering an
unnecessary answer.” (citation omitted)).
While “the statute of limitations provision of the [Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA)] is an affirmative defense rather than
jurisdictional,” a district court may dismiss a time barred Section 2254 application
sua sponte under Habeas Rule 4. Kiser, 163 F.3d at 329.
But, “‘before acting on its own initiative’ to dismiss an apparently untimely
§ 2254 petition as time barred, a district court ‘must accord the parties fair notice and
an opportunity to present their positions.’” Wyatt v. Thaler, 395 F. App’x 113, 114 (5th
Cir. 2010) (per curiam) (cleaned up; quoting Day v. McDonough, 547 U.S. 198, 210
(2006)).
Under the circumstances here, the questionnaire provided notice and
Petitioner has had an opportunity to respond. And these findings, conclusions, and
recommendation also provide Petitioner fair notice, and the opportunity to file
objections to them (further explained below) affords an additional chance to present
to the Court his position as to the limitations concerns explained below. See, e.g.,
Ingram v. Dir., TDCJ-CID, No. 6:12cv489, 2012 WL 3986857, at *1 (E.D. Tex. Sept.
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10, 2012) (a magistrate judge’s report and recommendation gives the parties “fair
notice that the case may be dismissed as time-barred, which [gives a petitioner] the
opportunity to file objections to show that the case should not be dismissed based on
the statute of limitation” (collecting cases)).
AEDPA “introduced both ‘simple logic’ to the federal habeas landscape and
uniform rules for federal courts to apply.” Wallace v. Mississippi, 43 F.4th 482, 492
(5th Cir. 2022) (quoting Smith v. Titus, 141 S. Ct. 982, 987 (2021) (Sotomayor, J.,
dissenting from denial of cert.), then citing Day, 547 U.S. at 202 n.1).
“Namely, it implemented a host of greatly needed procedural requirements for
petitioners seeking habeas relief.” Id. (citing Brown v. Davenport, 142 S. Ct. 1510,
1524 (2022) (“In many ways, the statute represented a sea change in federal habeas
law.”)).
One such requirement is “the one-year period for an individual in custody
pursuant to a state-court judgment to file a § 2254 petition for habeas relief” that
“begins running from the latest of four events.” Id. at 497 (citing 28 U.S.C. § 2244(d)):
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
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diligence.
28 U.S.C. § 2244(d)(1).
The time during which a properly filed application for state post-conviction or
other collateral review is pending is excluded from the limitations period. See id.
§ 2244(d)(2).
The one-year limitations period is also subject to equitable tolling – “a
discretionary doctrine that turns on the facts and circumstances of a particular case,”
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999), and only applies in “rare and
exceptional circumstances,” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002)
(citing Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)).
“[A] litigant is entitled to equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing.’” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016)
(quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
“‘The diligence required for equitable tolling purposes is reasonable diligence,
not maximum feasible diligence.’ What a petitioner did both before and after the
extraordinary circumstances that prevented him from timely filing may indicate
whether he was diligent overall.” Jackson v. Davis, 933 F.3d 408, 411 (5th Cir. 2019)
(quoting Holland, 560 U.S. at 653; footnote omitted).
But “[a] petitioner’s failure to satisfy the statute of limitations must result from
external factors beyond his control; delays of the petitioner’s own making do not
qualify.” Hardy v. Quarterman, 577 F.3d 596, 598 (5th Cir. 2009) (per curiam)
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(citation omitted). So this “prong of the equitable tolling test is met only where the
circumstances that caused a litigant’s delay are both extraordinary and beyond [the
litigant’s] control.” Menominee Indian Tribe, 577 U.S. at 257.
A showing of “actual innocence” can also overcome AEDPA’s statute of
limitations. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). But the actual
innocence gateway is only available to a petitioner who presents “evidence of
innocence so strong that a court cannot have confidence in the outcome of the trial
unless the court is also satisfied that the trial was free of nonharmless constitutional
error.” Id. at 401 (quoting Schlup v. Delo, 513 U.S. 298, 316 (1995)).
That is, the petitioner’s new, reliable evidence must be enough to persuade the
Court that “‘no juror, acting reasonably, would have voted to find him guilty beyond
a reasonable doubt.’” Id. at 386 (quoting Schlup, 513 U.S. at 329); see also Johnson v.
Hargett, 978 F.2d 855, 859-60 (5th Cir. 1992) (“The Supreme Court has made clear
that the term ‘actual innocence’ means factual, as opposed to legal, innocence – ‘legal’
innocence, of course, would arise whenever a constitutional violation by itself requires
reversal, whereas ‘actual’ innocence, as the Court stated in McCleskey [v. Zant, 499
U.S. 467 (1991)], means that the person did not commit the crime.” (footnotes
omitted)); Acker v. Davis, 693 F. App’x 384, 392-93 (5th Cir 2017) (per curiam)
(“Successful gateway claims of actual innocence are ‘extremely rare,’ and relief is
available only in the ‘extraordinary case’ where there was ‘manifest injustice.’”
(quoting Schlup, 513 U.S. at 324, 327)).
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Analysis
The timeliness of most Section 2254 applications is determined under
Subsection A, based on the date on which the judgment became final.
And a state criminal judgment becomes final under AEDPA “when there is no
more ‘availability of direct appeal to the state courts.’” Frosch v. Thaler, No. 2:12-cv-
231, 2013 WL 271423, at *1 (N.D. Tex. Jan. 3, 2013) (quoting Jimenez v. Quarterman,
555 U.S. 113, 119 (2009)), rec. adopted, 2013 WL 271446 (N.D. Tex. Jan. 24, 2013).
Colbert pled guilty to theft of property, tampering with government records,
security execution of documents by deception, money laundering, and murder and
was sentenced to 25 years imprisonment. See State v. Colbert, Nos. F-16-489-W, F-
16-75320-W, F-16-75321-W, F-16-75337-W, F-16-75411-W (363rd Dist. Ct., Dallas
Cnty., Tex. Jan. 22, 2019). Colbert did not file a direct appeal, so his state criminal
judgment became final for federal-limitations purposes on the thirtieth day after it
was imposed (on January 22, 2019) that was not a Saturday, Sunday, or legal holiday
– which was Thursday, February 21, 2019. See TEX. R. APP. P. 26.2(a)(1); TEX. R. APP.
P. 4.1(a). So the deadline to file a federal habeas petition based on a limitations
determination under Subsection A was Friday, February 21, 2020. See id.
And Colbert did not file a state habeas application attacking his convictions
until May 2022. See In re Colbert, No. W-1675411-A (363rd Dist. Ct., Dallas Cnty.
Tex.), denied, No. WR-93,907-1 (Tex. Crim. App. Oct. 26, 2022). So the pendency of
the state habeas application did not toll the limitations period since the one-year
period for seeking relief under Section 2254 expired more than two years before the
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first state habeas application was filed.
In his response to the Court’s questionnaire, Colbert lists twenty-four reasons
why his Section 2254 petition is not time-barred and four reasons he did not file
sooner – many of which are claims that his counsel was ineffective or that he was not
aware of his appeal rights. See generally Dkt. No. 28. But a claim of ineffective
assistance of counsel on appeal “does not toll the AEDPA’s statute of limitations.”
Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000); see also Cousin v. Lensing, 310
F.3d 843, 849 (5th Cir. 2002), cert. denied, 539 U.S. 918 (2003) (“Additional support
for the proposition that attorney error does not trigger equitable tolling is the
longstanding rule that prisoners are not entitled to counsel during habeas
proceedings and thus cannot state a claim for ineffective assistance during those
proceedings.”).
And “common problems of inmates who are trying to pursue postconviction
habeas relief” do not alone – or even in the aggregate – justify equitable tolling.
Webster v. Stephens, No. 4:13-cv-859-A, 2014 WL 201707, at *2 (N.D. Tex. Jan. 17,
2014) (“It is well settled ... that a petitioner’s pro se status, indigence and lack of
knowledge of the law, all common problems of inmates who are trying to pursue
postconviction habeas relief, do not warrant equitable tolling of the limitations
period.” (citing Felder v. Johnson, 204 F.3d 168, 171-72 (5th Cir. 2000); Turner v.
Johnson, 177 F.3d 390, 391 (5th Cir. 1999))); see also Tate v. Parker, 439 F. App’x 375,
376 (5th Cir. 2011) (per curiam) (“The alleged extraordinary circumstances endured
by Tate, such as ignorance of the law, lack of knowledge of filing deadlines, a claim of
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actual innocence, temporary denial of access to research materials or the law library,
and inadequacies in the prison law library, are not sufficient to warrant equitable
tolling.” (citing Felder, 204 F.3d at 171-72; Scott, 227 F.3d at 263 & n.3)).
Colbert also attempts to use federal rules such as Federal Rule of Civil
Procedure 60(b) to support his claim that the Court should grant him a new trial in
state court. See, e.g., Dkt. No. 28 at 16. But the Federal Rules of Civil Procedure apply
only to federal civil judgments, not criminal judgments, particularly state criminal
judgments. Cf. United States v. Moore, 671 Fed. App’x 349, 350 (5th Cir. 2016)
(“[M]otions under the rules of civil procedure do not apply in criminal cases.”); United
States v. O’Keefe, 169 F.3d 281, 289 (5th Cir. 1999) (Federal Rules of Civil Procedure
“apply to all suits of a civil nature,” so Rule 60(b) “simply does not provide for relief
from a judgment in a criminal case.”).
Similarly, Colbert asserts that his petition is not time-barred because his state
court application was not time-barred, but the AEDPA applies only to Section 2254
petitions filed in federal court, not to state court habeas applications.
Colbert also asserts that the AEDPA statute of limitations should be tolled
because of COVID lockdowns and restrictions, but as set out above, the statute of
limitations expired on February 21, 2020. And, although Colbert claims the COVID
lockdowns started in January 2020, see Dkt. No. 28 at 43, significant COVID
restrictions in the United States did not begin until March 2020. See
www.cdc.gov/museum/timeline/covid19.html (last visited 12/10/25). But, even if
COVID lockdowns at his prison started in January 2020, Colbert has not explained
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how the lockdowns prevented him from timely filing his federal petition and has not
shown that he exercised diligence prior to the lockdowns. See Thames v. Dir., TDCJ-
CID, No. 4:21-cv-976, 2022 WL 19004344, at *2-3 (E.D. Tex. Sept. 15, 2022), rec.
adopted, 2023 WL 2465780 (E.D. Tex. Mar. 9, 2023) (citing cases finding that the
COVID pandemic and related lockdowns do not establish extraordinary
circumstances for equitable tolling).
And to the extent that any of Colbert’s arguments could be viewed as a claim
of actual innocence, the only new evidence that he provides is that he received letters
from the Conviction Integrity Unit of the Dallas District Attorney’s Office in April
2020 relating to an investigation into Candace Schoppe in the Dallas County Medical
Examiner’s Office and in January 2025 relating to an investigation into Esteban
Montenegro who questioned Colbert after he was arrested in California. See, e.g., Dkt.
No. 28 at 13. But Colbert does not provide any evidence of improprieties in his case,
much less sufficient evidence to persuade the Court that “no juror, acting reasonably,
would have voted to find him guilty beyond a reasonable doubt.” McQuiggin v.
Perkins, 569 U.S. 383, 386 (2013).
The Court should therefore dismiss the Section 2254 petition with prejudice as
time barred.
Recommendation
Under Rule 4 of the Rules Governing Section 2254 Cases, the Court should
dismiss Petitioner Christopher Brian Colbert’s 28 U.S.C. § 2254 habeas application
with prejudice as time barred. And the Court should direct that the Clerk of Court
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serve any order accepting or adopting this recommendation on the Texas Attorney
General.
A copy of these findings, conclusions, and recommendation shall be served on
all parties in the manner provided by law. Any party who objects to any part of these
findings, conclusions, and recommendation must file specific written objections
within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 72(b). In order to be specific, an objection must identify the specific finding or
recommendation to which objection is made, state the basis for the objection, and
specify the place in the magistrate judge’s findings, conclusions, and recommendation
where the disputed determination is found. An objection that merely incorporates by
reference or refers to the briefing before the magistrate judge is not specific. Failure
to file specific written objections will bar the aggrieved party from appealing the
factual findings and legal conclusions of the magistrate judge that are accepted or
adopted by the district court, except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
DATED: December 11, 2025
_________________________________________
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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